The New Nation - Internet Edition

K.M. Mukta

In the evolutionary and zigzag history of human civilization, we do not discover /invent any other alternative platform of judiciary to protect and preserve life and property as pick of human flavor to survive in this mundane world. In this spectrum, separation and independence of judiciary is a sine qua non to address people's grievances from all strata.

The people of this part of the planet invested a lot from time immemorial to quench the thrust of justice as their legitimate expectations and rights are perished and frustrated from multifaceted vested corners of colonialism's cupidity, its legacy as degenerated psyche in aftermath generations specifically in complicated bureaucracy, governance, political will and neo-colonial agents.

But Bengali as a nation is icon of knight, painstaking, rebellious, struggle prone to materialize the dream of justice as luminous in thousand year's history thereof. Separation of judiciary is an integral part of that endeavor. But it is an irony of Bengali nationhood that it can not reap or retain the fruit of successes as sustainable. As for instance, achieving of independence through a gulf of blood shed but the flavor of independence still a dream of aloof where the hapless commonalty is skylark.

In the same chronology, on 1 November, 2007; we attained partial separation of judiciary though the whole nation is fully bloomed to welcome full fledged separation and independent of judiciary for upholding constitution, human rights, good governance, and other normatic aspect of right based approach of modern welfare state.

Though it is not time enough to evaluate the far-reaching advertence of separation of judiciary, meanwhile all of us visualize the rudimentary positive change in terms speedy disposal, eradication of up soaring corruption, transparency, accountability which safe down trodden justice seekers and this would add mobility in the sustainable nation building maneuver. After the separation of the judiciary, the rate of disposal of criminal cases in the courts of magistrates increased by 51 per cent in December 2007 in relation to the cases disposed of by the judicial magistrates in November 2007.

Even this partial separation of judiciary has already germinated win win pragmatic milieu for all the stakeholders but this ameliorated race of nation has begets burning sensation of contour vested groups as their all pervasive hypocrisy and voracity do not know any limit by the cost of withering away of the collective interest. They want to grasp the taboo of bureaucratic complexity, absolute power for absolute corruption and they are frightened from decentralization of power, active and passive accountability to the have nots people as prevailing now-a- days in judiciary.

This colonial degenerated psyche to maximize the vested interest is explicitly reflected in the recent the Judicial Service Secretariat Ordinance, 2008 which the council of advisers to the caretaker government gave the final approval on 14-12-08, which is now waiting to be promulgated by the president. The bird's eye view without optics on the text enshrined 19 sections envisage the following traits of it---

Grandiloquence, chicanery ,coquetry and uncalled - for meddling of law ministry by the name of Judicial Service Secretariat for perfection of separation of judiciary; but it would not take a moment to frustrate the dream as it has made the Secretariat as Juggernaut.

The judicial service secretariat headed by the chief justice must go through the law ministry to contact the president and the prime minister regarding any matter related to the functioning of the secretariat (Section 4(2) of the Ordinance).If it is so, the pertinent question arises why this weighty Secretariat would be nourished by the taxes of citizens?

This Ordinance has made a castle in the air in respect of independence of judiciary in terms of the suspension, dismissal, removal, posting, promotion, leave, control, and discipline as the Articles 48(3) and 116 provided the aforesaid functions must be executed by the President in consultation with the Prime Minister which is the surname of anchoring judiciary with Executive organ at least the experiences of Bangladesh testimony so.

Among the 15 functions of the Secretariat, all the most indispensable functionaries for the protection and preservation of independence of judiciary shall be done via law ministry as broker leaded by anti Judiciary hyena. This is simply a blatant conspiracy to show humbug of illegal and unethical power of tyrant bureaucrat to perish the separation and independence of judiciary.

There is colossal negation of autonomy of the Secretariat though the Ordinance tantalizes some mere bounty to the Supreme Court in respect of arranging pion, chaprashi, sweeper, alpine, books-khatas, slate-pencil, tissue paper, pot etc.where the Law Ministry does not want to be cambist as part of their intrigue to appease.

The accountability of the secretary of the secretariat is devolved on the Chief Justice in such a decoration where his persona is focused rather the Supreme Court as institution with collective entity and this might be a part of plot to authenticate non functionality or incapability of smooth functioning of it in future through various allegations as asymmetrically prevailing in despotic, chaotic and power centered bureaucracy in Bangladesh.

It connotes that the chief justice will not be allowed to communicate directly with the president or the prime minister regarding the secretariat's functioning. The new ordinance puts the law ministry in the way of the High Court's exercise of that power. This is crystallized to all why such encroachment and self declared mastery has been deliberately given to the law ministry?

This ordinance is against the spirit of the judiciary's separation from the executive branch of government.

Some of its provisions running counter to relevant articles in the country's constitution. As art.116 of the constitution provides the control including the power of posting, promotion and granting of leaves, of disciplining persons employed in the judicial service and the magistrates exercising judicial functions shall be vested in the president and shall be exercised by him in consultation with the Supreme Court and art. 109 means the High Court shall have superintendence and control over all courts and tribunals subordinate to it.

The executive or law ministry's mala fide interference as it frequently proved might hamper the new judicial secretariat's spontaneous functioning. The very organogram of secretariat would simply obstruct judicial proceedings.

High Court or Full court is absent from the total modus operandi of Secretariat .It bypassed section7 (b) of High Court Rules pertaining to GA Committee as an age old traditional effective body composed of Chief Justice and others three Judges to deal with Promotion and transfer.

In the Ordinance, there is no iota of reference of "appropriate authority" as frequently enshrined in the Rules, 2007 where it is stated that Law Ministry would propose in case of 15 functionaries of the secretariat to the Supreme Court and its recommendation would get priority.

Above all, this ordinance is inconsistent with the Constitution and violation of the 12 points of Masdar Hossain's case in spirit and letters.

In a nutshell, from the aforesaid anatomy of the proposed Judicial Service Secretariat Ordinance, 2008, it could be axiomatically inferred that it would debacle separation of judiciary through the dominance of hawkish executive swoop.

After 37 years of independence, it is a matter of great regret that the policy makers who are like step sons of the nation imbibed into selfishness fail to think platonically for the ulterior welfare of the country rather they leave no stone unturned to fetter the race of good omen like separation of judiciary.

As a citizen of the country our legitimate expectation is that the government shall ensure separation and independence of judiciary with all its multitudes setting aside any kind of plot from any corners to fetter its race directly or indirectly. Otherwise it would create plethora of anarchy as already echoed from the emergency meeting on 20-12-08 of Bangladesh Judicial Service Association, a platform of around 1,200 judicial officials across the country, demanded to scrap the Ordinance. BJSA has vehemently condemned those who are trying to curtail comprehensive separation of judiciary along with their legal demands and proposed abstaining from work, wearing black badges and hemming the president's office to press home their demands.

Judiciary is a resort of confidence, reverence and respect to the society at large. All of us should invest efforts to protect and preserve its sanctity and dignity.

We believe that there would be minimum wisdom in profane and anti-public policy bureaucracy to uphold the apex matrix of judiciary and they should not bound it to come out in the road as its back is against the wall after so much hassle, tussle and exclusion from various rational advertence as it is highly vulnerable state organ merged in lackadaisical milieu devoid of any tenacity or unity to bargain.

The field level scenario represents that the country and countrymen do not want to see any conflict between executive and judiciary any more in case of ensuring justice seems to be done through holistic separation of judiciary. They are fully prepared to challenge any impediments in path of plenipotentiary separation of judiciary.

It is a legal, ethical and civic duties for all including voracious, greedy and profligate bureaucrats to cooperate with judicial organ for separation of judiciary in toto as recommended in Masdar Hossain's case without any covert or overt exception of it. This is high time to the nation peddling in 21st century to ensure separation of judiciary to materialize the core dreams of flavor of independence, justice, good governance, democracy, transparency, accountability and right based approach. Administrative cadres and bureaucracy pouncing for power should come forward with open mind to survive and feasible functioning of separation of Judiciary. They have to visualize and envisage that separation of judiciary is a division of labor between and among public servants to serve the country not to gulp the blood and sweat of hapless skinny bony citizen, which is a general propensity amongst the greedy vested segment of public servant.

Last but not least, the proposed Ordinance for secretariat would beget mammoth obstacle and hurdle for sustainable separation and independence of judiciary. There is a dire need of secretariat without father-in-law's house in law ministry. It should be emphatically noted that the proper functional separation and independence of judiciary would germinate a fertile edifice for a prosper nation where intra and inter generations irrespective of admin or judicial cadre would feel complacence.

Pressure groups like NGO, media, civil society can play a pivotal role in this regard through proactive advocacy. It would be prudent and judicious to scrap the ensuing Ordinance to redraft it avoiding an iota of anchoring with any ministry. Against the cowardice apprehension of complicate bureaucracy, it could be assured that the judiciary would not be arrogant in its demands as there is not a single precedent of it in this regard after so many deprivations, like other state organs. Hope, conscience would sharp enough of the concerned to take proper resolution in this regard without delay to evade probable conflict among the organs of state where the substantial number of peace loving and marginalized people would be immolated.